May 7, 2012 - I have been going to Guantánamo Bay since 2004 to observe the military commissions originally established by the Bush administration to try accused terrorists. It was painfully apparent on Saturday that despite some improvements, not enough has changed. The commissions remain a cynical tool to obfuscate the fact that the US sanctioned the use of torture at the highest level of government. The world knows the CIA subjected the 9/11 defendants to years of shameful abuse, including waterboarding, extended sleep deprivation, debilitating stress positions, and other so-called "enhanced interrogation techniques". Yet, the US government seeks to classify any information about the torture, and suppress it from the public....

The commissions remain a cynical tool to obfuscate the fact that the US sanctioned the use of torture at the highest level of government. The world knows the CIA subjected the 9/11 defendants to years of shameful abuse, including waterboarding, extended sleep deprivation, debilitating stress positions, and other so-called "enhanced interrogation techniques". Yet, the US government seeks to classify any information about the torture, and suppress it from the public.

Less than an hour into the hearing, the word "torture" came up – and the censors immediately cut off the commission audio feed. The context was the defendants' refusal to wear earphones for an Arabic translation of court proceedings. David Nevin, counsel for Khalid Sheikh Mohammed, explained that Mohammed didn't want to use earphones because of "past experiences". Presumably, this was a reference to when the defendants were forced to wear headphones and subjected repeatedly to loud music blasted into their ears.

Prosecutors later said the government would provide an unredacted transcript of what was said, but this de facto government censorship of the public's right to access judicial proceedings is prohibited by our first amendment of the US constitution and has no place in an American courtroom.

Last week, the ACLU filed a motion challenging the government's censorship of torture and abuse in the 9/11 defendants' case. Although the judge did not rule on our motion Saturday, we hope he will give us a hearing when the case resumes in mid June.

From the start, it was obvious the Obama administration – like the Bush administration before it – has not provided adequate resources to the defense. One military defense lawyer told the court his client has not had a translator for over a year, despite repeated requests. That defendant has also been denied a civilian lawyer of his own choosing with extensive experience in death penalty cases.

The basic protections of attorney-client confidentiality – necessary for lawyers to represent their clients – are not possible under the Guantánamo regime. The commander at Guantánamo has forbidden any written communications between defendants and their lawyers about "information contraband", which includes discussions about any US personnel who may have tortured the defendants. That those torture sessions were illegal is an inconvenient truth that the US government would like to ignore.

Defense lawyers are caught in an impossible dilemma: either they abide by the Guantánamo rules and violate their ethical obligations as lawyers, or they abide by their ethical obligations and violate a direct military order, jeopardizing their security clearances and access to their clients.

The commissions system is so stacked against the defense that when the defense lawyers took an oath on Saturday to represent the interests of their clients and uphold the constitution, each felt compelled to add "to the best of my abilities". They are in an untenable situation.

These proceedings have all the makings of a show trial – the kind we condemn in other countries. Improvements to the military commissions in 2009 did little to change that. The rules still permit the judge to admit, under certain circumstances, evidence that has been coerced out of witnesses. Hearsay evidence, second- and third-hand information, which is normally banned in federal courts because it is inherently unreliable, are presumptively permitted in the Guantánamo commissions.

The rules also permit the prosecution to provide the defense summaries only of secret, classified information and limit the defense's right to challenge the basis for secrecy if new information comes to light. No wonder America's allies think so poorly of the Guantánamo commissions that they refuse to turn over terrorism suspects or intelligence if either might end up in the commissions.

I have now been to Guantánamo six times. Eight years after my first visit, nothing has changed my view that the military commissions are a second-tier system of justice where the outcome – in this instance, convictions that result in death sentences – is all but guaranteed. Everyone, no matter how serious the allegations, deserves a fair trial. And the public deserves justice, which can only be achieved with fair trials.

The devastating truth is that the most important terrorism trials ever held by our nation are being conducted in a system that is incapable of providing fair trials for the defendants – or justice for the victims of the 9/11 attacks.

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